37:1049(85)AR - - Air Force, Air Force Logistics Command, Oklahoma City Air Logistics Center, Tinker AFB, OK and AFGE Local 916 - - 1990 FLRAdec AR - - v37 p1049
[ v37 p1049 ]
The decision of the Authority follows:
37 FLRA No. 85
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
OKLAHOMA CITY AIR LOGISTICS CENTER
TINKER AIR FORCE BASE, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
October 18, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Charles N. Carnes filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The grievance concerned the Agency's imposition of a 3-day suspension on the grievant. The Arbitrator determined that, as a "regular arbitrator," he lacked jurisdiction to decide the case because the matter was subject to expedited arbitration procedures. Award at 2. As his award, the Arbitrator remanded the case to expedited arbitration in accordance with the terms of the parties' collective bargaining agreement. The Arbitrator also stated that the case should not be considered as encompassed within a Federal Mediation and Conciliation Service (FMCS) settlement agreement involving the parties.
For the reasons discussed below, we conclude that the Agency has not established that the Arbitrator's award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
The dispute in this case concerns the 3-day suspension of the grievant for his alleged failure to follow the Agency's established sick leave procedures. A grievance was filed over the grievant's suspension and was subsequently scheduled for an expedited arbitration hearing. However, the arbitrator chosen to hear the expedited arbitration case did not appear because of a collateral dispute with the Union concerning fees. The Agency "unilaterally 'closed' the case and so notified the Union. The Union never wit[h]drew or agreed to the closing of the [g]rievance." Award at 1. The Union then invoked regular arbitration and a regular arbitration proceeding was held before a different arbitrator.
In the regular arbitration proceeding, the Arbitrator stated that the threshold issue before him was:
Are the substantive merits of the 3-day disciplinary Grievance properly before this regular arbitration tribunal? If not, what should the proper remedy be?
The Agency contended before the Arbitrator that Article 7.08(b) of the parties' agreement prevented cases involving 3-day suspensions from being heard in a regular arbitration proceeding. The Union maintained that the case could be heard in a regular arbitration proceeding or, in the alternative, should be remanded to expedited arbitration.
The Arbitrator determined that the Union's invocation of the regular arbitration proceeding was timely but that, under Article 7.08(b), he did not have jurisdiction to decide the case in a regular arbitration proceeding. The Arbitrator concluded that "there was no proper basis for the Agency to unilaterally close [the earlier expedited arbitration] case."
Award at 2. The Arbitrator stated that "[t]he proper action to serve the [g]rievant's interests would be to arrange for a prompt and expeditious rescheduling of his expedited arbitration hearing." Id. The Arbitrator further concluded that "because the case has been a pending case in arbitration since the original invocation, it should not be considered one of the ten 1988/89 cases mentioned in the Federal Mediation & Conciliation Service No. 89-19592 Settlement Agreement[.]" Id. at 2-3. The FMCS settlement agreement provides for expedited arbitration of 10 cases that had been closed by the Agency during the period from March 31, 1988 to March 31, 1989. Agency's Exceptions at 4.
The Arbitrator made the following award:
On the basis of the facts as found and the above discussion I conclude that the substantive merits of this case are not properly before this regular arbitration tribunal and that I have no authority to proceed further. I remand the Grievant's case back to expedited arbitration for a prompt hearing as indicated above.
Award at 3.
III. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the Arbitrator's award is contrary to law. The Agency claims that, by fashioning and imposing a remedy after determining that he did not have jurisdiction to hear the case, the Arbitrator exceeded his authority. The Agency also contends that the Arbitrator made inconsistent findings concerning the timeliness of the Union's invocation of regular arbitration procedures. The Agency argues that "[w]ithout subject matter jurisdiction, the [A]rbitrator should not have reached ancillary procedural issues such as timeliness." Exceptions at 5. The Agency claims that the Arbitrator, therefore, based his conclusion preventing consideration of the grievance under the terms of the FMCS agreement "on a procedurally faulty determination of timeliness." Id.
B. Union's Opposition